[opiniojuris] Peter Spiro: Is There Such a Thing as Good Sovereigntism?

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Posted by Peter Spiro:
Is There Such a Thing as Good Sovereigntism?
http://www.opiniojuris.org/posts/1203715167.shtml


   Judith Resnik gave an interesting talk on local foreign policymaking
   at Peggy McGuinnessâ terrific Missouri v. Holland symposium week
   before last, based an article she has forthcoming in the Emory Law
   Review (proofs [1]here). She catalogues all the (mostly good) ways in
   which localities are emerging as international actors. Some of the
   themes echo others' work (see for example Catherine Powellâs [2]2001
   piece on dialogic federalism in which localities become a key agent on
   human rights treaty regimes), although Resnik does hone in on
   âtranslocalâ organizations such as the National League of Cities in a
   new way, and the packaging is helpful. On the preemption issue, she
   calls for a clear statement requirement under which local foreign
   policy measures would presumed constitutional unless Congress says
   otherwise. I wouldnât argue with that (and [3]in some postures, the
   Supreme Court wouldnât, either).
   As a frame here and elsewhere Resnik deploys the term sovereigntism in
   a way different than [4]I and [5]others have used the term. She
   distinguishes exclusive and inclusive versions of the tendency.
   Exclusive sovereigntism looks familiar, in the âefforts to buffer the
   United States from âforeignâ influences.â But one also finds an
   âinclusiveâ variant where (as exemplified by the constitution of South
   Africa) âoneâs national identity is predicated on exchanges from
   abroad.â
   I see the point. Exercises of the national will â in other words,
   exercises of national sovereignty â can work to incorporate
   international law. Leaving aside the question of whether "exclusive"
   sovereigntists actually do privilege the national government when it
   comes to foreign relations (as Mike Ramsay noted in the Q&A; see
   [6]here and [7]here for two among many examples to the contrary), I
   wonder if "inclusive" sovereigntism really captures meaningful
   possibilities, at least when it comes to the United States.
   That's because acts of national sovereign authority which selectively
   incorporate international law are all premised on the ultimate power
   to resist international law. Sovereigntists aren't isolationists, but
   they like their IL a la carte. In other words, all exclusive
   sovereigntists are also inclusive sovereigntists, up to a point. If on
   the other hand someone qualifies as an inclusive sovereigntist only if
   he accepts IL wholescale and trumping, well, then, not even the South
   Africans appear to qualify (their constitution accepts CIL as binding,
   but only where it doesn't conflict with a statute or other provisions
   of the constitution -- Paquete Habana, anyone?).
   At the same time, the foreign policymaking at the local level which
   Resnik describes can't itself qualify as sovereigntism of any kind,
   because it doesn't represent acts of the national sovereign will. In
   fact, the dramatic rise in local activity gives the lie to
   sovereigntism of any kind, proving that foreign relations is now
   beyond the control of national capitals; in other words, that IL will
   insinuate itself into the national fabric regardless of what
   Washington thinks it can do. Resnik's paper establishes that in a
   highly persuasive way, and the piece is worth a close read.

References

   1. http://www.rehnquistcenter.org/Emory.pdf
   2. http://links.jstor.org/sici?sici=0041-9907(200111)150%3A1%3C245%3ADFCPFI%3E2.0.CO%3B2-X
   3. http://supreme.justia.com/us/512/298/case.html
   4. http://www.foreignaffairs.org/20001101facomment932/peter-j-spiro/the-new-sovereigntists-american-exceptionalism-and-its-false-prophets.html
   5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=517642
   6. http://writ.lp.findlaw.com/commentary/20000626_goldsmith.html
   7. http://www.law.nyu.edu/kingsburyb/fall01/intl_law/unit1/ABIDING.HTM